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DAMAGE TO GOVERNMENT STRUCTURES

In inland river navigation, tows of barges pushed by tugs sometimes strike government locks and dams, causing damage. The U.S. Army Corps of Engineers, the federal agency that operates lock and dam facilities, typically bills the operator of the offending vessel for the damages to the government structure based on estimated or actual repair costs.

It is recommended that the operator of a vessel that strikes a lock or dam retain an engineer with experience in construction and repair of marine structures to assess the damages, determine necessary repairs and reasonable repair costs, and provide guidance on repair methodology and related matters. In some circumstances, involving a marine surveyor is also helpful. If an agreement cannot be reached on whether the vessel operator is responsible for the allision and the cost of repairs, the government generally files suit against the vessel and its operator under the federal Rivers and Harbors Act, 33 U.S.C. § 408, et seq..

Case law under the Rivers and Harbors Act holds that the operators of vessels striking government structures, and the vessels themselves, are liable for resulting damages, unless they can prove that the accident resulted entirely from the fault of the government or from fault of a third party. With respect to government negligence, comparative fault principles do not apply and damages awarded will not be reduced for partial fault on the part of lock and dam operators. But if the accident was entirely the government’s fault, the vessel is not responsible for lock and dam damage. If the accident was caused by negligence of a third party (for example another vessel in the area), that party is responsible for damages in accordance with its percentage of fault. Since there is a presumption of fault on the part of a moving vessel that strikes any fixed object, vessels that hit government structures are generally liable for resulting damage.

Disputes regarding lock and dam allisions often involve the reasonableness of repair costs claimed by the government. The government frequently insists on repairing the damages with its own staff and owners of the vessel often believe repairs could be made more economically by a private contractor. To avoid legal disputes over the costs of repairs, every effort should be made to work with the government to try to agree on the extent of damages, the nature of repairs to be made and the method of repairs. An engineer or surveyor representing the vessel operator should encourage the government to solicit bids for the repairs from private contractors, and the repairs should be monitored periodically.

Issues of contention that frequently arise are the amount of time the government spent on the repairs, the rates charged for utilization of government owned floating equipment (cranes, tugs, etc.), and the overhead rates that the Corps of Engineers applies to its direct labor costs. A civil engineer with expertise in marine structures can help challenge charges made by the Corps of Engineers, as can contractors capable of performing the repairs involved by testifying as to what they would have charged to repair the damage.

Accidents involving vessels and lock and dam structures can also result in damage to the barges and towboats involved. With respect to vessel damage, the government is responsible for a share of damages commensurate with its proportion of fault, if any, in causing the accident. Since lock and dam employees work closely with vessel crews during lockage, government fault can result from a failure of lock personnel to give the vessel proper instructions regarding the lockage procedure, failure of lockmen to follow government regulations regarding meeting and taking lines from vessels, or malfunctioning lock equipment.

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